What the Framers would say about the new marijuana state laws

It is official.  The states of Washington and Colorado this week broke new legal ground and legalized recreational (not just medical) use of marijuana by people over the age of 21.

Know what else is official? It is the official policy of the Federal Government that marijuana sales and use, whether for medical or recreational purposes, is illegal.

Marijuana is classified as a Schedule I controlled substance under the Federal Controlled Substances Act (CSA).  The Justice Department is responsible for enforcing federal laws, and it has stated that it will enforce those laws and may prosecute people who cultivate, sell, or distribute marijuana, and those who knowingly facilitate such activities.

So now what? What happens when a state law is in direct violation of a federal law? It might seem funny to picture Benjamin Franklin with a reefer cigarette in his hand, but he and the rest of the Framers of the Constitution had a lot to say about what may happen here.

Article VI of the Constitution includes the Supremacy Clause, which says that federal law is the “supreme law of the land”. This means that judges in every state must follow the Constitution and laws created by the Federal government.

Under a doctrine known as “preemption”, federal law preempts state law.  That means that if there is a federal law on the same issue as a state law, the federal law is the one that is followed. As a result, a federal court may require a state to stop certain behavior it believes is in conflict with federal law.

So what now?  In Colorado, Governor John Hickenlooper, who personally opposed the measure to legalize marijuana, stated that, “The voters have spoken and we have to respect their will. This will be a complicated process, but we intend to follow through.”

But he cautioned: “Federal law still says marijuana is an illegal drug, so don’t break out the Cheetos or Goldfish too quickly.”

It seems certain that by legalizing marijuana use, Colorado and Washington voters will face a direct show down with those in the Federal Government who uphold the federal law making it illegal. Both states have about a year to implement the marijuana laws.

So it remains to be seen how the states will implement the new laws and how the Federal government will handle the matter, but the fight that has already taken place over the use of medical marijuana may provide some insight.

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So far, 17 states have approved the use of marijuana if prescribed by a doctor for the treatment of a medical condition.  The Department of Justice has issued guidelines on the medical marijuana issue in which its explains that it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law or their individual non-commercial caregiver.

But the Federal government has, in fact, cracked down on the dispensaries that sell it, even those that would operate legally under state law.

Less than two months ago, federal authorities took legal action against 71 medical marijuana dispensaries in Los Angeles County, part of an ongoing campaign to crack down on the establishments.

Where, as in the Washington law, it will be the Washington State Liquor Control Board—an actual state government-controlled board and not a private dispensary—that is controlling the sale, it will be difficult for the Federal government to step in and prosecute state employees, because while the Federal government can and has prosecuted employees of state governments who have acted illegally outside the scope of their employment, there may be immunity for government officials who act in their official capacity to carry out their duties under the law.

The fact is, the Framers of the Constitution wanted to create a Federal government strong enough to enforce national policies, even against the will of the people of a particular state.

Where the laws of the state conflict with the laws of the nation, the laws of the nation—the federal law—will win if the Federal government goes to court to enforce its will.

And most Americans agree in general with the idea that the Federal government should have that power.  If, for example, a state decided to legalize slavery, it would be hard to imagine that the Federal government would not or should not fight that state law.

Whether the fight over the legalization of marijuana use is a fight the Federal government is willing to undertake to enforce its law against the majority of the voters in Colorado and Washington remains to be seen.

Can the Federal government go to court to fight the state marijuana laws? Yes.  Should it?  Let us know what you think.

Amy E. Feldman  is the Legal Education Consultant to the National Constitution Center. She is the General Counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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Program Note: Echoes of Prohibition: Today’s War on Drugs

Thursday, Nov.15, 2012, 6 p.m.

Daniel Okrent, bestselling author and curator of the Center’s world-premiere exhibition American Spirits: The Rise and Fall of Prohibition, joins Christopher Bracey, Senior Associate Dean for Academic Affairs at George Washington University Law School, to discuss the legacy of Prohibition in relation to the nation’s evolving drug policies.

More info: constitutioncenter.org/calendar/echoes-of-prohibition-todays-war-on-drugs

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